Belgium v. Senegal: Did the Court End the Dispute between the Parties?

Inna Uchkunova, New Bulgarian University (LLM) is a Member of the International Moot Court Competition Association.

The Judgment in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) is the first in the history of the International Court of Justice (“ICJ”) in which it found that a State had standing based on obligations erga omnes partes. Before that, the PCIJ had only once to pronounce on this question in the 1928 Wimbledon case. In para. 68 of its judgment the Court stated, inter alia, that:

The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33). These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case.

The Court’s reference in the judgment to the Barcelona Traction case may create confusion as to the difference between obligations erga omnes partes (Article 48(1)(a) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)) “owed to a group” of States and erga omnes obligations (per se) which are “owed to the international community as a whole” (Article 48(1)(b)).  The ARSIWA Commentary clarifies that the name “owed to the international community as a whole” was preferred over erga omnes in order to avoid confusion “with obligations owed to all the parties to a treaty.” The better view seems, therefore, to be that obligations erga omnes partes exist in the case of treaties such as the CAT or the Genocide convention, while obligations erga omnes form part of customary law.

Article 48 ARSIWA represents progressive development, but the Court in East Timor did not rule out standing deriving from obligations erga omnes either. It merely stated that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.” (para. 29) In that case the Court lacked jurisdiction based on the Monetary Gold principle. It remains to be seen whether erga omnes skeptics are to be proven right or wrong.

The Belgium v. Senegal case is interesting also in that the Court decided to deal with the question of Belgium’s standing under the heading of admissibility. The problem with this approach is that the Court may act proprio motu on issues relating to its jurisdiction (Article 36(6) of its Statute). On the other hand, issues of admissibility (such as the exhaustion of local remedies, nationality of claims, etc.) cannot be dealt with proprio motu but depend on an objection being raised by the party concerned. The importance of jus standi is such that it must fall for consideration sua sponte. (Matscher, F., Standing before International Courts and Tribunals in Bernhardt (ed.), Encyclopedia of Public International Law  (1981) p. 195).

Paragraph 68 of Belgium v. Senegal must be contrasted with paragraph 91 of the Barcelona Traction case, holding that “the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality.”

Obviously, erga omnes partes obligations will not always operate to provide any State party with standing. In the case under comment, Belgium based its claims not only on its status as a party to the CAT, but primarily on its “special interest” which distinguished it from the other parties.  By finding that is had standing as a State party, the Court disposed of the need to deal with Belgium’s “special interest” which, as noted by Judge Skotnikov in his Separate opinion, “allows it to avoid dealing… with the question as to whether Belgium has established its jurisdiction in respect of Mr. Habré in accordance with Article 5, paragraph 1, of the Convention.”

Judge ad hoc Sur terms the Court’s finding of standing erga omnes partes “a rabbit out of a magic hat” since the CAT permits reservations which are, in principle, impermissible in respect of obligations erga omnes partes (Argument from Reservations to the Genocide Convention Advisory Opinion, I.C.J. Reports 1951, p. 24) and secondly, the mechanism established in Article 22 CAT is optional. It could be maintained that had the drafters of the CAT intended to entitle any State Party to ensure compliance with the Convention, this mechanism should have been mandatory. Some would say that standing as a mere party may lead to “total judicial chaos” (to borrow the phrase from President Guillaume’s Separate opinion in the Arrest Warrant case.)

Despite such criticism and with a view to the object and purpose of the CAT, the Judgment has much to commend itself. The reason is best expressed in paragraph 69: “The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim.”  Notably, paragraph 120 of the Judgment adds that “the State in whose territory the suspect is present does indeed have the option of extraditing him to a country which has made such a request, but on the condition that it is to a State which has jurisdiction in some capacity, pursuant to Article 5 of the Convention, to prosecute and try him” thus leaving open the question whether Belgium is such a State. For instance, Belgium may have asserted jurisdiction based on the passive personality principle, however its nationality was only subsequently conferred, and only 1 of the 18 complainants of Chadian origin had Belgian nationality.

Therefore, in case Senegal opts to extradite Mr. Habré it remains questionable whether Belgium is a State “which has jurisdiction… pursuant to Article 5” and, consequently, whether Senegal is obliged to extradite him to Belgium. Erga omnes partes standing also has bearing on the issue of remedies, since a “State other than an injured State” (to use the language of Article 48 ARSIWA) may claim reparation only in the interest of the injured State. One might thus question whether the Court’s judgment in fact resolved the entire dispute between the two parties.